IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-21077
__________________________
COOPER CAMERON CORPORATION,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________
January 21, 2002
Before GARWOOD and WIENER, Circuit Judges, and CLEMENT,* District
Judge.
WIENER, Circuit Judge:
Plaintiff-Appellant Cooper Cameron Corporation (“Cooper”)
appeals from the district court’s grant of summary judgment
sustaining the decision of the Department of Labor (“DOL”) to
withhold from public disclosure, under the Freedom of Information
Act (“FOIA”),1 documents related to an explosion and fire at a
petrochemical plant near Houston. Given the unusual circumstances
*
Chief Judge Clement participated by designation in the oral
argument of this case as a United States District Judge of the
Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.
1
5 U.S.C. § 552.
of this case, we have determined that most of the material that the
DOL wants to withhold does not qualify as exempt from disclosure.
We therefore affirm in part, reverse in part, and render.
I. FACTS AND PROCEEDINGS
On a Sunday in June of 1996, at the Lyondell Petrochemical
Company’s storage terminal in Mont Belvieu, Texas, ethylene and
propylene being pumped under high pressure escaped into the
atmosphere, roaring out of a pipeline in a forty-foot jet of gas,
then forming a low, white cloud which drifted across a public
highway, ignited, and exploded. The explosion touched off a fire
which, according to the Houston Chronicle, lasted ninety minutes
and was visible from an interstate highway three miles away. No
one was injured, but media coverage of the incident attracted the
attention of the Houston South Area Office of the Occupational
Safety and Health Administration (“OSHA”), which investigated.
The explosion also sparked litigation: Lyondell sued Cooper,
a valve manufacturer, for damages in state court. The parties
deposed the only three Lyondell employees who were at the plant
when the explosions took place: Jack Bass, Dennis Hutter, and Bobby
Squier (“the deponents”). Each stated his full name and home
address during his deposition, and Bass provided his Social
Security number as well. The deponents testified that they gave
statements about the explosion to an OSHA investigator, but that
they did not have copies of their statements. Counsel for Lyondell
represented the deponents, met with them to prepare their
2
testimony, and asserted the attorney-client privilege on their
behalf.
Early in February, 1999, Cooper asked OSHA’s investigating
office to release all of its records on the explosion pursuant to
the FOIA. Four days after receiving the request, OSHA furnished
Cooper with three partially-redacted pages of records —— standard
inspection forms —— but withheld 145 pages, citing FOIA’s exemption
7 as justification.2
The following month, Cooper appealed this withholding to the
Solicitor of the DOL, arguing that the tort case pending in state
court publicized the identity and testimony of witnesses to the
explosion, thereby negating privacy interests and revealing any
otherwise confidential identities. Cooper filed three supplemental
appeals letters which focused on the deponents’ statements to OSHA,
and bird-dogged the Solicitor’s office by phone. OSHA claims that
during these phone calls Cooper narrowed its FOIA request to
include only the three deponents’ statements. Consequently, when
the Solicitor’s office affirmed OSHA’s action in November 1999, it
stated that it understood the request to be confined to those three
statements and upheld OSHA’s withholding of them as proper under
FOIA exemptions 7(D) and 7(C), which —— to generalize —— permit
agencies to withhold private or confidential material.
Cooper sued the DOL in federal district court, seeking an
2
There are six exemptions within 5 U.S.C. § 552(b)(7).
3
order compelling OSHA to produce the entire file (with names and
addresses redacted), moving for summary judgment, and repeating its
arguments that the deponents’ privacy and confidentiality interests
were attenuated. The DOL cross-moved for summary judgment, relying
solely on an affidavit (the “Miller declaration”) by Miriam Miller,
who since 1987 has served the DOL as Co-Counsel for Administrative
Law, Division of Legislation and Legal Counsel, in the Office of
the Solicitor in Washington. Her declaration primarily attested
not to how OSHA investigated the Mont Belvieu explosion, but rather
to how OSHA depends on its ability to promise witnesses to
industrial accidents that it will treat their statements
confidentially. The declaration did not describe the requested
material, none of which was in the district court record. The
court thus lacked even an in camera affidavit describing what OSHA
withheld. The court nevertheless granted the government’s motion
and denied Cooper’s, holding that both exemptions 7(C) and 7(D)
applied and that OSHA need not have segregated exempt material from
disclosable material in the witness statements.3
Cooper timely appealed. It contests the district court’s (1)
narrow construction of the request, (2) application of exemptions
7(C) and 7(D), and (3) refusal to segregate out disclosable
material or conduct an in camera review.
Given the gaps in the record, we attempted to clarify at oral
3
Cooper Cameron Corp. v. United States Dep’t of Labor, 118 F.
Supp. 2d 757, 763–64 (S.D. Tex. 2000).
4
argument what kinds of documents OSHA had withheld and which of
those documents Cooper had already obtained through discovery in
the tort case. Counsel for the DOL, to his credit, conceded that
the withheld material included some newspaper articles. The
ensuing exchange spurred the parties to advocate further filings.
Cooper sought to supplement the record with all the material in
OSHA’s file, urging that we examine this material in camera. The
DOL expressed opposition but voluntarily released to Cooper
everything in the OSHA file on the explosion except for eighteen
pages that the DOL believes truly merit withholding and seventeen
other pages that are subject to a protective order in the tort
case. We denied Cooper’s effort to supplement the record but
agreed to conduct an in camera review of the eighteen pages, a
review that our precedents permit4 and that we have now concluded.
II. ANALYSIS
We begin our analysis by noting several aspects of the FOIA
and the litigation it has engendered.
A. Standard of Review
We generally review a grant of summary judgment de novo,
applying the same standard as the district court.5 In most
litigation, a motion for summary judgment is properly granted only
4
See McCorstin v. United States Dep’t of Labor, 630 F.2d 242,
243 (5th Cir. 1980); Pope v. United States, 599 F.2d 1383, 1386
(5th Cir. 1979).
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
5
if there is no genuine issue as to any material fact.6
The FOIA context is unusual, however, because the threshold
question in any FOIA suit is whether the requester can even see the
documents the character of which determines whether they can be
released. The requester would thus face an evidentiary Catch-22 if
the statute and the case law did not make allowances. The statute
“expressly places the burden ‘on the agency to sustain its action’
and directs the district courts to ‘determine the matter de
novo,’”7 giving no deference to the agency’s determinations.
Courts generally will grant an agency’s motion for summary judgment
only if the agency identifies the documents at issue and explains
why they fall under exemptions.8 The agency often makes this
explanation in an affidavit, but the affidavit “will not suffice if
the agency’s claims are conclusory, merely reciting statutory
standards, or if they are too vague or sweeping.”9 The D.C.
Circuit, the federal appellate court with the most experience in
this field, has held that because the burden to establish an
exemption remains with the agency, the district court should not
6
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
7
United States Dep’t of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 755 (quoting 5 U.S.C.
§ 552(a)(4)(B)).
8
See Summers v. Dep’t of Justice, 140 F.3d 1077 (D.C. Cir.
1998).
9
Hayden v. National Security Agency/Central Security Service,
608 F.2d 1381, 1387 (D.C. Cir. 1979).
6
grant summary judgment based on a “conclusory and generalized”
assertion, even if the FOIA requester has not controverted that
assertion.10 We view this rule as an appropriate way of
implementing the FOIA’s burden-of-proof allocation on summary
judgment.
B. Categorical or Fact-Specific
Summary judgment resolves most FOIA cases, but there are two
varieties of such judgment for FOIA purposes. Disposition of the
instant appeal turns on this distinction.
As the Supreme Court has advised, “for an appropriate class of
law enforcement records or information[,] a categorical balance may
be undertaken” in determining whether the records should be exempt
from disclosure; and in ruling categorically, the district court
need not examine each document in particular.11 This categorical
approach eases judicial review of FOIA cases, permitting swifter
administration and disposition of requests for records that fall
10
Niagara Mohawk Power Corp. v. United States Dep’t of Energy,
169 F.3d 16, 18 (D.C. Cir. 1999).
11
Reporters Committee, 489 U.S. at 777:
The [1986] amendment was originally proposed by the Senate[,]
which intended to replace a focus on the effect of a
particular disclosure ‘with a standard of reasonableness . .
. based on an objective test.’ S.Rep. No. 98-221, 24 (1983).
This reasonableness standard, focusing on whether disclosure
of a particular type of document would tend to cause an
unwarranted invasion of privacy, amply supports a categorical
approach to the balance of private and public interests in
Exemption 7(C).
7
into categories. Cases outside the “appropriate class,” however,
do not receive categorical treatment, depend on the specific
content of the records sought, and require closer examination of
the evidence. It is this residuum of cases that we refer to as
“fact-specific.”
Whether the district court ruled categorically or fact-
specifically here is not readily apparent. Its opinion is probably
best viewed as a categorical holding, because the court had little
detail on the requested material available to it: The 145 withheld
pages were not in the record, were not described in the Miller
declaration, and were not summarized in a Vaughn index or an
equivalently detailed affidavit.12 Furthermore, as the district
court noted, “the essential facts of this case are not in
dispute,”13 giving additional support for the conclusion that the
district court ruled categorically.14
12
A Vaughn index is a common FOIA procedural device that lists
the documents responsive to the request and explains why portions
have been withheld. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973).
13
Cooper, 118 F. Supp. 2d at 759.
14
See Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir.
1996) (“In the instant case, the parties do not dispute the
relevant facts. What the parties do dispute is whether particular
documents categorically fit within one of FOIA's prescribed
exemptions. . . . [T]his is a question of law to which the district
court is not entitled deference.”); Voinche v. Federal Bureau of
Investigation, 999 F.2d 962 (5th Cir. 1993) (holding in Freedom of
Information Act suit that “[s]ummary judgment is reviewed de novo,
under the same standards the district court applies to determine
whether summary judgment is appropriate”); Halloran v. Veterans
Admin., 874 F.2d 315, 320 (5th Cir. 1989) (“Because the district
8
We do not view the district court’s lack of information on the
requested material as necessarily dooming a fact-specific ruling.
But such a holding requires a strong awareness that general
procedural principles and the evidentiary realities of FOIA
litigation interact to allocate the burden of persuasion unusually.
C. FOIA’s Purpose
That allocation attempts to effectuate FOIA’s “general
philosophy of full agency disclosure”15 and its purpose of
facilitating public access to agency documents.16 FOIA’s drafters
intended it to “pierce the veil of administrative secrecy and to
open agency action to the light of public scrutiny.”17 Therefore,
in judging agencies’ attempts to withhold information, courts use
a “strong presumption in favor of disclosure.”18
The statute, however, does not carry this philosophy to the
point of impracticality. Congress recognized that disclosure of
some types of information would be unwise, and therefore wrote in
court based its decision not upon the unique facts of this case,
but upon categorical rules regarding what does and does not
constitute an invasion of privacy for FOIA purposes, we treat its
conclusions as conclusions of law, and thus review them de novo.”).
15
Dep’t of the Air Force v. Rose, 425 U.S. 352, 360 (1976)
(quoting S. REP. NO. 813, 89th Cong., 1st Sess., 3 (1965)).
16
John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989).
17
Rose, 425 U.S. at 361.
18
United States Dep’t of State v. Ray, 502 U.S. 164, 173
(1991). See also Reporters Committee, 489 U.S. at 762; Halloran,
874 F.2d at 318–19.
9
statutory exemptions that enable agencies to overcome the general
presumption. Two such exemptions are at issue here.
D. Applicable Exemptions
1. Exemption 7(C): Unwarranted Invasion of Personal Privacy
FOIA’s exemption 7(C) provides that an agency’s duty to
disclose records shall not apply to
records or information compiled for law enforcement purposes,
but only to the extent that the production of such law
enforcement records or information . . . (C) could reasonably
be expected to constitute an unwarranted invasion of personal
privacy.19
To determine whether this exemption applies, we must first
determine whether the records were compiled for law-enforcement
purposes; if they were, then we must weigh the public’s interest in
disclosure against the individual’s right to privacy.20
a. Law-Enforcement Purpose
Although Cooper contends that OSHA’s records were not
“compiled for law enforcement purposes,”21 this contention is feeble
at best. Congress obviously intended OSHA inspections to be part
of an enforcement program,22 and in this case OSHA acted pursuant
19
5 U.S.C. § 552(b)(7)(C).
20
See Ray, 502 U.S. at 175.
21
5 U.S.C. § 552(b)(7).
22
See 29 U.S.C. § 651(b), which declares a congressional
“purpose and policy” to
assure . . . safe and healthful working conditions and to
preserve our human resources--
. . .
(10) by providing an effective enforcement program which shall
10
to its statutory mandate to inspect workplaces, question employees,
and cite employers that violate safety and health regulations.23
Although the specific OSHA context is new for this Circuit, we have
previously held that other agencies’ civil law–enforcement records
fall under exemption 7.24
In its effort to overcome that holding, Cooper asserts that
OSHA has not met its burden of showing a law-enforcement purpose in
this case.25 Even if we assume without granting that OSHA is a
“mixed function” agency which has both law-enforcement and other
missions, OSHA need only show that it actually assembled the
requested records for a law-enforcement purpose,26 that is, in a
include a prohibition against giving advance notice of any
inspection and sanctions for any individual violating this
prohibition.
23
See 29 U.S.C. § 657–58. Section 659, entitled “Enforcement
procedures,” enables OSHA to assess penalties against employers
found in violation of occupational safety standards. Section 666
permits civil penalties of up to $70,000 and, for a willful or
repeated violation, criminal penalties of up to a year in prison.
24
See Pope, 599 F.2d at 1386 (holding that enforcing regulation
of legal practice before the IRS was a “law enforcement purpose”
under exemption 7, which covers “civil and regulatory proceedings
as well as [ ] criminal matters”); Evans v. Dep’t of
Transportation, 446 F.2d 821, 823 (5th Cir. 1971) (applying
exemption 7 to investigative records of the Federal Aviation
Administration).
25
See Avondale, 90 F.3d at 962 (“[T]he Government has the
burden of proving the existence of such a compilation for such a
purpose.”).
26
See Pratt v. Webster, 673 F.2d 408, 420–21 (D.C. Cir. 1982).
11
focused inquiry on specific violations of the law.27 Here, evidence
of such a focused inquiry pervades the record: OSHA inspected the
Mont Belvieu plant to determine whether Lyondell violated safety
standards.
We reject out of hand Cooper’s contentions on this point and
move on to the crux of exemption 7(C): determining and weighing
the privacy and public interests.
b. Privacy Interest: Preventing Employer Retaliation
To analyze privacy interests here, we distinguish among three
types of information in OSHA’s file. We shall refer to these types
of information as (1) identity, (2) linking, and (3) substantive.
Identity information includes basic personal data such as the
witness’s name, address, telephone number, and Social Security
number. This type of information is not at issue in this case.
Ever since the administrative appeal before the DOL, Cooper has
consistently emphasized that it does not seek any identity
information in the deponents’ statements. In any event, the case
law consistently supports agency redactions of identity
information.28
Substantive information here would be the bare facts about the
27
See Church of Scientology v. Dep’t of the Army, 611 F.2d 738,
748 (9th Cir. 1980); Rural Housing Alliance v. United States Dep’t
of Agriculture, 498 F.2d 73, 81–82 (D.C. Cir. 1974).
28
See, e.g., SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197,
1206 (D.C. Cir. 1991) (holding identity information about
individuals categorically nondisclosable) (collecting cases).
12
explosion. OSHA does not allege any privacy interest with respect
to substantive information.
Linking information lies at the core of OSHA’s argument. If
disclosed, linking information, in combination with data from other
sources (including the depositions), could enable Lyondell to
determine which deponent told OSHA what. This possibility caused
the district court to find that the deponents “face[d] a myriad of
possible adverse consequences [to] themselves, their families, and
their jobs if their statements are disclosed.”29 Left unstated by
the district court, but emphasized by OSHA, is the possibility
that, even though OSHA has closed its investigation, Lyondell could
retaliate against witnesses who gave OSHA information that would
damage Lyondell in the tort case.
The cases generally support a privacy interest in preventing
employer retaliation. The Supreme Court has held that a fairly
analogous interest against retaliation —— by the Haitian government
against persons who had attempted to enter the United States ——
“must be given great weight” in a FOIA case, and on that basis
upheld the State Department’s redaction of identity information
from interview summaries that it released.30 In the OSHA context,
even before an amendment in 1986 eased agencies’ burden in
withholding records under exemption 7(C), other courts acknowledged
29
Cooper, 188 F. Supp. 2d at 762.
30
Ray, 502 U.S. at 177.
13
that workers have a privacy interest in OSHA’s records. The
district court relied on these cases for the proposition that
“courts protect identities of employee-witnesses in the course of
an OSHA investigation with respect to information that was given to
the agency.”31 These cases do not, however, support OSHA’s refusal
to disclose entire witness statements. Rather, two of these
opinions upheld OSHA’s redaction only of witnesses’ names,
addresses, and other identity information.32 The third affirmed
OSHA’s refusal to release “any statement that might reveal
[employee-witnesses’] identities,” —— linking information —— but it
did so under exemption 7(D).33
Whether a privacy interest against employer retaliation exists
in this case depends on whether we treat this case categorically or
fact-specifically. Because this dichotomy affects two other
31
Cooper, 118 F. Supp. 2d at 761.
32
See Cuccaro v. Secretary of Labor, 770 F.2d 355, 359–60 (3d
Cir. 1985) (“OSHA withheld those portions of documents which
contained the home addresses and names of employees and employee
representatives and names of employees contacted during the
investigations.”); Miles v. United States Dep’t of Labor, 546 F.
Supp. 437, 440–41 (M.D. Pa. 1982) (“In this case, the names and, in
some instances, addresses and telephone numbers of persons
contacted during OSHA's investigation or otherwise identified in
the file were deleted pursuant to this exemption.”).
33
Lloyd and Henniger v. Marshall, 526 F. Supp. 485, 487 (M.D.
Fla. 1981) (emphasis added). “The material plaintiff seeks in this
action is of three types: certain opinions and recommendations of
the compliance officer that investigated the accident, the home
addresses of certain witnesses to the accident and of several
employees, and those portions of certain witnesses’ statements that
would reveal the identities of the witnesses.” Id. (emphasis
added).
14
aspects of this case, we will resolve it after we discuss them.
c. Public Interests: Monitoring OSHA’s Activities and
Effective OSHA Enforcement
The public interest militating against FOIA exemption 7(C) is
the interest of the general public in monitoring its government.
Justice Douglas famously described this underlying rationale as
“the principle that a democracy cannot function unless the people
are permitted to know what their government is up to.”34 More
recently, the Supreme Court stated:
FOIA’s central purpose is to ensure that the Government’s
activities be opened to the sharp eye of public scrutiny, not
that information about private citizens that happens to be in
the warehouse of the Government be so disclosed.35
We have recognized, as a corollary of these democratic
principles, that the “specific motives of the party making the FOIA
request are irrelevant.”36 Importantly for this case, the rights
of the requester “are no different from those that might be
asserted by any other third party, such as a neighbor or
prospective employer.”37 Justice Ginsberg has noted that this “main
rule serves as a check against selection among requesters, by
agencies and reviewing courts, according to idiosyncratic
34
Environmental Protection Agency v. Mink, 410 U.S. 73, 105
(1973) (Douglas, J., dissenting) (internal citation omitted).
35
Reporters Committee, 489 U.S. at 774.
36
Halloran, 874 F.2d at 323.
37
Reporters Committee, 489 U.S. at 771.
15
estimations of the request’s or requester’s worthiness.”38
Therefore, although we suspect that Cooper seeks the deponents’
statements to impeach testimony in the tort suit, our suspicion
counts neither in favor of nor against Cooper’s FOIA request.
(This said, it is also settled law that FOIA was not intended to be
a substitute for discovery.39)
Cooper asserts that the public has an interest in determining
whether OSHA inquired into employee training standards, early
warning systems, failure of controls, and development of safe work
practices, each of which is governed by OSHA regulations. Cooper
has also described the public interest here as one in knowing
whether the government adequately ensured that Lyondell safely
stored millions of barrels of volatile petrochemicals. (The record
certainly indicates that the gas release and explosion threatened
38
United States Dep’t of Defense v. Federal Labor Relations
Authority, 510 U.S. 487, 508 (1994) (Ginsburg, J., concurring).
39
See John Doe Agency, 493 U.S. at 153 (“In deciding whether
Exemption 7 applies, moreover, a court must be mindful of this
Court’s observations that the FOIA was not intended to supplement
or displace rules of discovery.”); NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 143 (1975) (stating that FOIA’s primary purpose was
not to benefit private litigants or to substitute for civil
discovery); Columbia Packing Co. v. United States Dep’t of
Agriculture, 563 F.2d 495 (1st Cir. 1977) (“(T)he disclosure
provisions of FOIA are not a substitute for discovery and a party’s
asserted need for documents in connection with litigation will not
affect, one way or the other, a determination of whether disclosure
is warranted under FOIA.”).
Neither is FOIA the employees’ only shield against employer
retaliation. OSHA forbids employers from discriminating against
employees who have exercised their rights under the statute. 29
U.S.C. § 660(c).
16
the general public: passers-by on a nearby highway actually drove
through the hydrocarbon cloud before it ignited.)
On balance, the cases suggest that there is a cognizable
public interest in monitoring agencies’ enforcement of the law in
specific instances. The Supreme Court found a public interest in
the release of witness interviews that would show whether the State
Department was adequately monitoring Haiti’s compliance with its
commitment not to persecute refugees.40 Those interviews, the Court
noted, would “reveal how many returnees were interviewed, when the
interviews took place, [and] the contents of individual
interviews.”41 Similarly, the Court has also held that redacted
summaries of disciplinary hearings at the United States Air Force
Academy “would explain how the disciplinary procedures actually
functioned and therefore were an appropriate subject of a FOIA
request.”42
We have reached the same conclusion in similar cases. We
recently held that the public had an interest in knowing the
content of award orders issued by the Army during the Vietnam War,
both as historical records and as means by which watchdog groups
could root out fraudulent claims to military decorations.43 More
40
Ray, 502 U.S. 164 at 178.
41
Id.
42
Reporters Committee, 489 U.S. at 773.
43
Sherman v. United States Dep’t of the Army, 24 F.3d 357, 366
(5th Cir. 2001).
17
analogously to this case, we held that voting lists in a union
election gave the requester “information which it needs to
determine whether the NLRB is properly conducting its elections,”
because the requester alleged instances of vote fraud.44 And
perhaps most on point, because we were considering an agency’s
investigation of a single possible violation, we have held that
“the public has an interest in learning about the nature, scope,
and results of the [Veterans Administration’s] investigation of,
and its relationship with, one of its contractors.”45
The DOL offers a line of cases from the D.C. Circuit to
suggest that Cooper must bolster the general public interest in
monitoring official actions with a showing of agency irregularity
or illegality, which concededly is absent here. Those cases,
however, are inapposite. One involved a highly tenuous public
interest: The court upheld the National Park Service’s refusal to
release photographs of Vincent Foster’s suicide wounds because the
requester had not shown any evidence that four investigating
agencies had falsified the cause of death.46 The public interest
at stake here is much broader and more substantial and could be
asserted by environmental watchdog groups, researchers into OSHA’s
enforcement practices, neighbors of the Mont Belvieu plant, or
44
Avondale, 90 F.3d at 955.
45
Halloran, 874 F.2d at 324.
46
Accuracy in Media, Inc. v. National Park Service, 194 F.3d
120, 122, 124 (D.C. Cir. 1999).
18
drivers on the beclouded highway. The other cases relied on by
OSHA upheld agency redaction of names and addresses from released
documents, not the withholding of entire records, because the
requester had not shown agency illegality or wrongdoing that would
justify following up with individuals mentioned in the records.47
As Cooper does not seek identity information, no showing of agency
irregularity or illegality is required here.
The district court did not state whether Cooper had succeeded
in making out a public interest.48 Rather, the court agreed with
OSHA that there was a public interest in nondisclosure because
“disclosure of private witness information would undermine [OSHA’s]
investigative powers” by chilling future cooperation.49 For
evidentiary support of this proposition, OSHA cited the Miller
declaration, which broadly stated the agency’s policy position on
this point. We view the declaration as supporting a categorical
holding, but not a fact-specific one.
47
See McCutchen v. United States Dep’t of Health and Human
Services, 30 F.3d 183, 184, 188–89 (D.C. Cir. 1994) (explaining
that “A mere desire to review how an agency is doing its job . . .
does not create a public interest sufficient to override the
privacy interests protected by Exemption 7(C)” and on that basis
affirming redaction of names of investigated scientists and
complainants against them); SafeCard Services, 926 F.2d at 1206
(“We now hold categorically that, unless access to the names and
addresses of private individuals appearing in files within the
ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity,
such information is exempt from disclosure.”).
48
Cooper, 118 F. Supp. 2d at 762–63.
49
Id.
19
In two ways, therefore, our 7(C) analysis turns on how we
resolve the categorical/fact-specific dichotomy. Our analysis of
the confidentiality exemption raises this dichotomy for the third
and final time.
2. Exemption 7(D): Disclosure of Identity of a Confidential
Source
OSHA also relied on exemption 7(D), which provides that FOIA
does not apply to
records or information compiled for law enforcement
purposes, but only to the extent that the production of
such...records or information...(D) could reasonably be
expected to disclose the identity of a confidential
source..., and, in the case of a record or information
compiled by criminal law enforcement authority in the
course of a criminal investigation or by an agency
conducting a lawful national security intelligence
investigation, information furnished by a confidential
source.
It is readily apparent from exemption 7(D)’s language, unlike that
of exemption 7(C), that Congress distinguished between the identity
of the source and the information imparted by that source. Under
7(D), the government has clear statutory authority to withhold both
the source and the information with respect to criminal
investigations; but neither OSHA nor the district court
characterizes the Mont Belvieu investigation as criminal.50 Thus
the criminal cases that OSHA and the district court cite with
respect to exemption 7(D) do not control here. Neither is national
50
OSHA can impose criminal penalties only in cases of (1)
employee death; (2) advance notice of an inspection, or (3) a false
statement. 29 U.S.C. § 666.
20
security involved here. We are therefore dealing with only the
first prong of 7(D), disclosure of the identity of a confidential
source.
The Supreme Court has emphasized that the issue under
exemption 7(D) is “not whether the requested document is of the
type that the agency usually treats as confidential, but whether
the particular source spoke with an understanding that the
communication would remain confidential.”51 Such an understanding
can arise either explicitly, through the government’s assurances to
the source, or implicitly, through the facts or circumstances
surrounding the source’s statement.52
a. Express Confidentiality
Regarding explicit confidentiality, one portion of the Miller
declaration —— the sole affidavit supporting OSHA’a nondisclosure
—— vaguely states that according to standard procedure, OSHA
assured the deponents that their statements would remain
confidential.53 The district court seems to have accepted this bald
conclusion when it held that “[t]he record indicates that all
employee-witnesses. . .were explicitly. . .assured the utmost
51
United States Dep’t of Justice v. Landano, 508 U.S. 165, 172
(1993).
52
Id. at 172.
53
Miller declaration at 4 (“[T]he government has expressly
assured the statement-givers that their identities would be held in
confidence with respect to what they told the agency.”).
21
confidentiality.”54 This was error, for another passage of the
Miller declaration reflects that Ms. Miller had no idea whether the
OSHA inspector provided explicit assurances.55 The government
cannot meet its burden with an internally inconsistent, self-
contradictory affidavit.
OSHA nevertheless urges that, because it is its established
policy explicitly to assure employee-witnesses of confidentiality,
we should presume regularity in the inspector’s actions in this
case. Regardless of whether this argument accurately depicts
OSHA’s standard procedures,56 the sole case from this Circuit that
OSHA cites for this presumption is a wholly inapposite habeas
corpus case in which we presumed that a district attorney, “as an
officer of the court,” acted constitutionally in interviewing a
criminal defendant.57 OSHA inspectors are not officers of the
court, and there is no constitutional question here.
54
Cooper, 118 F. Supp. 2d at 763.
55
Miller declaration at 2:
It is established procedure for OSHA Compliance Safety and
Health Officers [ ] to assure all employee-witnesses
interviewed that their identities will be protected with
respect to what they relate to the agency. There is no reason
to believe this case was any exception.
56
See OSHA Field Inspection Reference Manual CPL 2.103 § 6 ch.
IIA.4.e(5)(a) (emphasis added):
Interviews shall normally be reduced to writing, and the
individual shall be encouraged to sign and date the statement.
The [OSHA investigator] shall assure the individual that the
statement will be held confidential to the extent allowed by
law, but they may be used in court/hearings.
57
See Nash v. Estelle, 597 F.2d 513, 518 (5th Cir. 1979).
22
Furthermore, recent cases from the D.C. Circuit strongly
suggest that a presumption of regular explicit confidentiality
should not arise in the FOIA context. For example, in a FOIA case
that grew out of a criminal investigation, that court rejected the
FBI’s similarly conclusional assertions of obvious express
confidentiality:
This may be obvious to the affiant, but it is not obvious
to us. This bald assertion that express assurances were
given amounts to little more than recitation of the
statutory standard, which we have held is insufficient.
. . .
At the very least the government must indicate where
these assurances of confidentiality are memorialized.58
We agree with this standard.
Here, OSHA has given us no such indication, and our in camera
review of the requested material unearthed no evidence of express
assurances. (One statement was even signed by two Lyondell
superintendents in addition to the interviewed employee.) Its
inspector may have given explicit assurances of confidentiality,
but OSHA has not proven this.
b. Implied Confidentiality
The government can establish implied confidentiality in two
ways: by specifically showing that circumstances surrounding the
investigation support an inference of confidentiality or by
58
Billington v. United States Dep’t of Justice, 233 F.3d 581,
585 (D.C. Cir. 2000) (citing Campbell v. United States Dep’t of
Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (“[T]he affidavits must
show, with reasonable specificity, why the documents fall within
the exemption.”)).
23
categorically establishing that a class of records merits a
presumption of confidentiality.
To determine whether to presume that employee-witnesses’
statements to OSHA generally are categorically confidential gives
us our first chance to interpret United States v. Landano.59 There,
an inmate convicted of murdering a police officer sought the FBI’s
files on the case, and the Bureau responded with an affidavit
asserting that those sources it redacted should be presumed
confidential.60 The Supreme Court held that the FBI’s files were
not entitled to a presumption of inferred confidentiality, although
“more narrowly defined circumstances” can support an inference, and
“when circumstances such as the nature of the crime investigated
and the witness’ [sic] relation to it support an inference of
confidentiality, the Government is entitled to a presumption.”61
Such circumstances would include cases in which an informant has
witnessed a gang-related murder or is paid to squeal.62
An authoritative survey of post-Landano cases concludes that
other courts have found a categorical presumption of implied
confidentiality in investigations of
organized crime, murder, drug trafficking, extortion,
59
United States Dep’t of Justice v. Landano, 508 U.S. 165
(1993).
60
Id. at 167–68.
61
Id. at 181.
62
Id. at 179.
24
illegal possession of firearms, domestic terrorism,
national security, loan sharking and gambling, armed bank
robbery, bribery, interstate transportation of stolen
property, and passport fraud and contempt of Congress.63
No stretch of the ejusdem generis maxim can shoe-horn the instant
investigation into the class illustrated by that list. For us to
hold on the strength of that survey that OSHA’s investigative
records, as a category, are implicitly confidential would be
unwarranted and would plow new ground.
The second way implied confidentiality can arise is through
the specific circumstances of a particular investigation. Once
again, the record is bare on this point. The Miller declaration
makes a strong categorical case, but its assertions with respect to
the deponents’ statements here are baldly conclusional.
OHSA cites a case from the Eleventh Circuit, L & C Marine, for
the principle that such conclusional statements can establish
implied confidentiality in particular instances. In that case,
however, OSHA released “most of the file” on a maritime accident,
deleting “names, addresses and other identifying information”; and
the government filed an affidavit from the OSHA inspection officer
who had interviewed the four witnesses to the accident.64 Language
from L & C Marine supporting a “presumption” refers not to the
presumption that OSHA would have us apply here, but rather to the
63
U.S. Department of Justice, FREEDOM OF INFORMATION ACT GUIDE &
PRIVACY ACT OVERVIEW 416–18 (GPO 2000) (collecting cases).
64
L & C Marine Transport, Ltd. v. United States, 740 F.2d 919,
921–22 (11th Cir. 1984).
25
presumption that OSHA may offer confidentiality to witnesses
without waiting for them to ask for it.65 Indeed, L & C Marine
suggests that no presumption of implied confidentiality should
exist in the OSHA context, and that OSHA must show specific facts
to justify it. Such specifics being absent from this record, we
find no implied confidentiality here.
c. Summary
To summarize, OSHA has not made a sufficient factual showing
in this case with respect to either explicit or implied
confidentiality. Exemption 7(D) therefore does not protect the
material at issue —— unless we treat this case categorically.
E. Framing the Case
Three issues, and therefore both exemptions, turn on whether
we treat this case categorically or fact-specifically. As general
propositions, (1) the privacy interest against employer
retaliation, (2) the public interest in effective OSHA enforcement,
and (3) the rationale for implied confidentiality for workers who
give statements, are all categorically valid; but they have little
purchase here because of the specific facts of this case. Thus, a
categorical treatment would tip in OSHA’s favor; a fact-specific
treatment would swing the case Cooper’s way. We must, therefore,
resolve this dichotomy.
1. Categorical Approach
65
Id. at 924 n.5.
26
The Supreme Court teaches that “categorical decisions may be
appropriate and individual circumstances disregarded when a case
fits into a genus in which the balance characteristically tips in
one direction.”66 As OSHA contends, employees who consent to
interviews may want and expect the agency to keep their statements
private and their identities confidential. Framed thus, on the
categorical plane, there is no issue of material fact with respect
to either exemption. Cooper has presented no evidence to counter
OSHA’s general assertion that, to obtain the information that it
needs to enforce the law, the agency must safeguard the anonymity
of employee-witnesses. Therefore, under exemption 7(D), implied
confidentiality exists; and under exemption 7(C), the combination
of the privacy interest against employer retaliation and the
public interest in effective enforcement trumps the public’s
interest in monitoring OSHA’s investigation into the explosion and
fire. We could hold, therefore, that statements to OSHA by
employee-witnesses are a characteristic genus suitable for
categorical treatment. Generally, the context of many OSHA
investigations, in which employee informants alert the agency to
workplace violations that might otherwise go unnoticed, would
support that holding. Even if potentially justifiable in another
case, however, such an outcome strikes us as unsustainable here.
As the following fact-specific discussion will show, applying such
66
Reporters Committee, 489 U.S. at 776.
27
a general rule to the instant case, much less announcing it here,
would be imprudent if not just plain wrong, and might require us
concomitantly to create an exception. We therefore decline to view
this case categorically, analyzing it fact-specifically instead.
2. Fact-Specific Approach
With respect to the three issues to which a categorical
holding might be possible, the operable facts before us are so
unsupportive of categorical treatment that they mandate resolution
of this case on its own merits. The fire and explosions were
widely publicized. OSHA learned of the explosion from the news
media, not from an informant. Bass, Hutter, and Squier were the
only employees on duty when the explosion occurred and the fire
began, so common sense would have OSHA interview them as soon as it
learned about the explosion. The fact that those individuals gave
statements to OSHA is known to Lyondell, which also possesses their
very detailed depositions. Nothing in the record even suggests
that Lyondell has threatened retaliation against the deponents,
whom the district court’s opinion named.
The Miller declaration does not describe why release of
linking information in the requested material would impede
effective OSHA investigations, threaten the privacy of persons
mentioned in that material, or reveal confidential identities.67
67
See Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982) (“The
problems in undertaking to decide which portions of an employee’s
statement may be released to his employer without revealing that
employee’s identity are enormous, if, indeed, not insoluble.
28
The declaration simply does not address the unusual circumstances
before us. On a fact-specific approach, the Miller declaration
simply does not carry the government’s burden of proof.
Furthermore, our thorough in camera review confirms our belief
that —— with the exception of one page of material —— linking
information in the requested material is not exempt from
disclosure. Compared to the depositions, the deponents’ statements
give fresher accounts of the explosion and fire, more specifics on
the witnesses’ impressions and emotional reactions, and better
descriptions of what the deponents did to help put out the fire.
As far as we can tell, none of this detail contradicts the
depositions sufficiently to further substantiate the possibility of
employer retaliation; neither is any of it personally private. The
fourth statement, of which we only became aware as a result of our
in camera review, has already been seen by two Lyondell
supervisors, who signed it. (To describe the one page that we
conclude is exempt would threaten that which the exemptions
protect; this we decline to do.)
On the fact-specific level, therefore, the evidence does not
support summary judgment for OSHA. On the contrary, it supports
summary judgment for Cooper. Under these facts, in the context of
Merely deleting the name from the statement would not insure
against identification, since the employee’s narrative, or part of
it, may be such that the employer could identify the employee
involved, or could narrow the group down to two or three
employees.”) (emphasis added). Here, of course, the group is
already narrowed down.
29
exemption 7(C), the public interest in monitoring OSHA’s
investigation outweighs any possible interest in effective
enforcement or protection of employees from retaliation, neither of
which has sway here. Similarly, under exemption 7(D), the record
is essentially devoid of evidence to support a finding of implicit
confidentiality. In closing, we emphasize that each fact-specific
analysis depends on the discrete facts before the court that
conducts the review.
III. CONCLUSION
The identity information in the requested material is exempt
from disclosure under FOIA, but the linking information is not.68
We affirm the district court with respect to the identity
information but reverse with respect to the linking information.
To avoid the waste of judicial resources, time, and money, we shall
not remand to the district court to repeat the same in camera
review that we have undertaken ourselves. Instead, we render
judgment for Cooper, ordering OSHA to furnish Cooper forthwith
copies of the three deponents’ statements and the fourth statement
as well, after redacting all identity information (i.e., names and
addresses, including those of other witnesses and of the OSHA
68
Our result here accords with the view of two justices in Ray,
who urged in the exemption 6 context that courts should focus
“solely upon what the requested information reveals, not upon what
it might lead to.” Ray, 502 U.S. at 180 (Scalia, J., concurring).
See also Sherman, 244 F.3d at 366 n.10 (noting that the Supreme
Court has reserved judgment on this “derivative use” issue).
Because we conclude that OSHA should release linking information
here, our holding does not implicate the “derivative use” theory.
30
inspector) but redacting no other information. OSHA may
nevertheless continue to withhold page number 19 in the agency’s
sealed filing.
AFFIRMED in part, REVERSED in part, and RENDERED.
31